Date: 2007-06-29 Docket: L042758  Nathan Smith J. | Link

The plaintiff, Centura Buildings Systems Ltd., ("Centura") applies for the production of documents from Four Seasons Hotels Ltd., ("Four Seasons") which is not a party to this action. Four Seasons opposes the application, saying that the proposed order would require an expensive and time-consuming review of thousands of documents. In B.C. "Rule 26(11) allows the court to order production of "a document" in the possession or control of a person who is not a party." Discussion of scope of production required of a non-party, with degree to which the Peruvian Guano test can be applied. "Because Peruvian Guano was decided in 1882, it can be assumed that most of the documents were handwritten. The typewriter was still in the category of new, emerging technology. In setting out a very broad test of relevance, the court could not have anticipated it being applied to the huge volume of documents created, reproduced, transmitted and stored by 21st Century communications technology. Even Dufault v. Stevens, decided in 1978, predates much of the technology now in common use, such as e-mail and the internet." (para 12). "In the circumstances of this case, the plaintiff's argument that it must have full disclosure of all documents from both Blackcomb and Four Seasons to ensure that no documents are missing is a far too tenuous and speculative basis for requiring a non-party to engage in the kind of onerous search that the plaintiff is seeking." (para 26)